CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
ASTERISK * DENOTES SUCH OMISSIONS.
CONTRACT NUMBER: 96-0053
SPECIFIC AGREEMENT NO. 96-0053
BY AND BETWEEN
METRO ONE TELECOMMUNICATIONS, INC.
AND
SPRINT SPECTRUM L.P.
FOR
ENHANCED DIRECTORY ASSISTANCE SERVICE
CONFIDENTIAL
Sprint Spectrum / Metro One Page 1 of 61
CONTRACT NUMBER: 96-0053
TABLE OF CONTENTS
1. DEFINITIONS 5
2. PROVISION OF EDA SERVICES 7
3. INTERFACE AND SUPPORT 11
4. PERSONNEL 13
5. GOVERNMENT APPROVALS AND FEDERAL REQUIREMENTS 14
6. COMPENSATION AND TERM 14
7. MARKETING 16
8. PUBLICITY/TRADEMARK/SERVICE MARK 16
9. ASSISTANCE 17
10. RECORDS 17
11. COMPLAINTS 17
12. CONFIDENTIAL INFORMATION 18
13. INDEMNIFICATION AND LIABILITY 20
14. DISPUTE RESOLUTION 20
15. TERMINATION 22
16. AFFILIATES, ASSIGNMENT AND SUBCONTRACTING 24
17. UCC 25
18. SERVICE TESTING/QUALITY ASSURANCE 25
19. SURVIVAL OF OBLIGATIONS 26
20. CAPTIONS 26
Sprint Spectrum / Metro One Page 2 of 61
CONTRACT NUMBER: 96-0053
21. NOTICES 26
22. ENTIRE AGREEMENT 27
23. SEVERABILITY 27
24. INDEPENDENT CONTRACTOR AND INSURANCE 27
25. NO THIRD PARTY BENEFICIARIES 28
26. FORCE MAJEURE 28
27. DEFAULT/REMEDIES 28
28. WAIVER 29
29. APPLICABLE LAW 29
30. METRO ONE WARRANTIES 29
31. EMPLOYMENT PRACTICES 30
32. RIGHT OF AUDIT 31
33. *** 31
EXHIBIT 1 *** 36
EXHIBIT 2 *** 37
EXHIBIT 3 CURRENT METRO ONE CALL CENTERS 38
EXHIBIT 4 *** 39
EXHIBIT 5 *** 45
EXHIBIT 6 INVOICE. 52
EXHIBIT 7 FAILURE NOTICE / DISASTER RECOVERY. 54
EXHIBIT 8 EDA PRODUCT FEATURES. 55
Sprint Spectrum / Metro One Page 3 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 9 RECORD FORMAT. 56
EXHIBIT 10 IMPLEMENTATION PLAN/DELIVERABLES. 57
EXHIBIT 11 58
EXHIBIT 12 APPROVED SUBCONTRACTORS. 59
EXHIBIT 13 *** 60
EXHIBIT 14 *** 61
Sprint Spectrum / Metro One Page 4 of 61
CONTRACT NUMBER: 96-0053
ENHANCED DIRECTORY ASSISTANCE-Registered Trademark- AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into, effective as of this
____ day of October, 1996 by and between Sprint Spectrum L.P. a Delaware limited
partnership ("Sprint Spectrum"), and Metro One Telecommunications, Inc., an
Oregon corporation ("Metro One").
WHEREAS, among other communications services, Sprint Spectrum provides
telecommunications services in the Call Termination Area, as defined below;
WHEREAS, Metro One provides directory assistance services; and
WHEREAS, Sprint Spectrum and Metro One desire for Metro One to provide
telephonic directory assistance services to Sprint Spectrum Callers, as defined
below; and
WHEREAS, Metro One recognizes Sprint Spectrum's desire to strategically deliver,
develop and implement services and its desire to continually seek out business
process improvements by modifying, adding or deleting service levels, better
defining common goals and improving methods and procedures to lessen costs to
either party.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the sufficiency of which are hereby acknowledged, Sprint
Spectrum and Metro One agree as follows:
1. DEFINITIONS
a. "AGREEMENT" means this Agreement, all Exhibits and Additional
Documents attached hereto.
b. "CALL" means a specific session with a single Operator contact.
c. "CALLER" means a person, or entity, or phone to whom Sprint Spectrum
offers Enhanced Directory Assistance-Registered Trademark- service.
d. "CALL COMPLETION SERVICE" means that through Call Completion Service,
Metro One Operators will directly connect the Caller to the requested
business, government or residence by outpulsing to Sprint Spectrum's
directed network the digits of the requested business, government or
residence telephone. Metro One Operator shall remain accessible to the
Caller throughout the call using automatic methods
(StarBack-Registered Trademark-, AutoBack-TM-") or other means
requested by the Caller.
e. "CALL ORIGINATION AREA" means the geographic region which Sprint
Spectrum defines as its calling area which consists of the areas set
forth in Exhibit 1 as amended from time to time by mutual written
agreement of the parties.
f. "CALL TERMINATION AREA" means the United States, except to the extent
that future services extend the area.
Sprint Spectrum / Metro One Page 5 of 61
CONTRACT NUMBER: 96-0053
g. "COMPETITOR" is a carrier competing in wireless telephony with Sprint
Spectrum and contemporaneously using EDA services provided to Sprint
Spectrum pursuant to this Agreement.
h. "DOCUMENTATION" includes, in all forms of media, manuals, data
definitions, technical diagrams, templates, user methods and
procedures for the System, business process definitions and flow
charts, quick guides, tutorials, training, real-time help information
files, descriptions, instructions, requirements, records, table
Maintenance, report generation, System operations definitions and flow
charts, contact logs, and file record layouts.
i. "ENHANCED DIRECTORY ASSISTANCE-Registered Trademark- (EDA)" means the
live-Operator enhanced directory assistance services provided by
Metro One to Sprint Spectrum and its Callers pursuant to this
Agreement. EDA includes, but is not necessarily limited to (i) call
termination by outpulsing to Sprint Spectrum's directed network the
digits of the Caller-requested number; (ii) provision of name,
address, and telephone number when requested and when legally
available, and complete the call; and (iii) any other EDA product
features agreed upon between Metro One and Sprint Spectrum and
listed in Exhibit 8.
j. "ENHANCEMENT" is any change to the System which increases
functionality and/or performance of the System.
k. "LATA" means local access and transport area.
l. "LAUNCH" is the specific date that Sprint Spectrum starts providing
product and service to its customers for the purpose of receiving
compensation and Metro One starts providing EDA Services to Sprint
Spectrum within a specific market for the purpose of receiving
compensation.
m. "LEC" means a Local Exchange Carrier or Competitive Local Exchange
Carrier providing service in a Call Termination Area.
o. "NPA" means area code as defined by the Numbering Plan of the American
National Standards Institute.
p. "NXX" means the assigned local exchange within an area code.
q. "OPERATOR(S)" means the live operators utilized by Metro One in
providing EDA to Callers.
s. "SERVICE" means the provision of Services, including incidental
deliverables or goods, to Sprint Spectrum by Metro One, as authorized
and specified in a written Work Request, per Exhibit 11.
t. "SERVICE LEVELS" means minimum standards of Metro One performance
under this Agreement as set forth in Exhibit 5.
Sprint Spectrum / Metro One Page 6 of 61
CONTRACT NUMBER: 96-0053
u. "SOFTWARE" includes any computer code, modules and programs, and any
modification, patch, bug fix, update, release to such, in source code
or object form, as the case may be, including related data files,
rules, parameters, interfaces, and Documentation.
v. "SPRINT SPECTRUM NETWORK" means the communications network operated by
Sprint Spectrum.
w. "STARBACK-Registered Trademark-" means Metro One's proprietary
feature and related technology that allows Callers continuous
access to live Operators, when enabled, throughout the entire call
or calling session by pressing the star (*) key for approximately
one second. StarBack is a registered trademark of Metro One and is
protected by patents pending.
x. "SYSTEM" means Metro One has developed a proprietary system to enable
it to perform the EDA services (the "System"). The System uses
business, residential and government databases, including on-line
national database system access and a backup database connection to
the LEC's database. The System (i) presents Operators with interactive
menus allowing searches by business, governmental or residential name,
category, and/or regional searches; and (ii) allows rapid scrolling of
listings by Operators to locate multiple listings once the basic
search criteria have been established. The System utilizes an
automatic voice playback system.
y. "THIRD PARTY" is any party other than Sprint Spectrum or Metro One
which is referenced in the Agreement.
z. "WORK REQUEST" is Sprint Spectrum's and/or Sprint Spectrum Affiliates
request to purchase Services from Metro One pursuant to a Work Request
Form as shown in Exhibit 11.
2. PROVISION OF EDA SERVICES
Metro One will maintain the System in such a manner as to ensure compliance
with the Service Levels agreed to in Exhibit 5.
a. STAFFING. Metro One shall staff the EDA lines twenty-four (24) hours a
day, seven (7) days a week, three hundred and sixty-five (365) days a
year, (or 366 days as the case may be) with a sufficient number of
Operators to perform the services required hereunder. Metro One shall
utilize qualified, properly-trained, professional and courteous
Operators in providing the EDA services to Callers. Metro One, its
agents, officers, employees and Operators shall at all times interact
with Callers in a respectful and courteous manner. Sprint Spectrum
will be notified and have opportunity to comment on any substantive
changes in Operator training and hiring practices related to
performance of this Agreement at least thirty (30) days prior to
implementation.
Sprint Spectrum / Metro One Page 7 of 61
CONTRACT NUMBER: 96-0053
b. GREETING AND CLOSING. Any greeting or closing provided by Metro One
shall be Sprint Spectrum specific and mutually agreed upon by Metro
One and Sprint Spectrum. Such greeting shall not exceed five (5)
seconds and such closing shall not exceed twelve (12) seconds in
length, unless mutually agreed to by the parties. All such greetings
and closings may be made by means of the automated voice playback
system. The live Operator is connected to the call during the
greeting.
x. XXXXXXXX-Registered Trademark-. In performing the EDA Service, the
Operator shall remain accessible to the Caller throughout the call
using STARBACK-Registered Trademark-, or other means.
d. CALL COMPLETION. At a Caller's request, Metro One shall perform the
EDA services, provided the residence, business or government related
to the requested service is located within the Call Termination Area
and the information is legally available. Under no circumstances will
Metro One knowingly perform Call Completion Services where the
requested information relates to a residence, business or government
listing located outside the Call Termination Area as then defined.
Metro One and Sprint Spectrum may remotely monitor calls for quality
assurance purposes, and shall not otherwise monitor, record, listen to
or divulge the contents of any communication, or any other information
regarding Callers or calls.
e. ROUTING. Metro One agrees to route Callers calls to any number
requested by Caller within the Call Termination Area, provided
however, that such number or service is not expressly prohibited by
Sprint Spectrum (expressly prohibited numbers are set forth in Exhibit
4). In the event Metro One should direct a call to a prohibited number
or a charge per call service, Metro One shall be solely liable for
fees associated with such call.
f. PERFORMANCE STANDARD. In the event that Metro One provides for any
other Metro One customer EDA services provided hereunder in a certain
market within the Call Origination Area, to the extent Metro One's
performance standards for that customer are more favorable than Sprint
Spectrum's, this Agreement shall be amended so as to cause Metro One
to provide Sprint Spectrum with these same performance standards in
that certain market within the Call Origination Area. Notwithstanding
the foregoing, Metro One shall implement the more favorable
performance standards for Sprint Spectrum within thirty (30) days of
such event.
g. SYSTEM.
i) At a minimum, Metro One shall use all prudent business measures
to keep the System accurate to the same degree as the database of
the LECs for listings within the Call Termination Area, including
regulatory changes that affect LEC number portability. In the
event Metro One does not have sufficient information in the
System to provide any one of the EDA services, it shall utilize
such other sources as necessary, at no additional charge to
Sprint Spectrum, to provide the requested EDA services.
Notwithstanding the foregoing Metro One shall be excused from
performance to the extent that any
Sprint Spectrum / Metro One Page 8 of 61
CONTRACT NUMBER: 96-0053
LEC or other Metro One selected data provider does not make data
available to Metro One under commercially reasonable terms
acceptable to Metro One in its sole discretion. In the event
Metro One does not have sufficient information in the System to
provide any one of the EDA services, it shall utilize such other
sources as necessary to provide the requested EDA services,
including, without limitation, the back-up database provided as
an on-line service by the LEC or LEC operator delivered directory
assistance. In the event that either (i) a Caller requests the
LEC directory assistance operator, or (ii) Metro One cannot
provide any one of the requested EDA services, Metro One shall
route a Caller's telephone call to the LEC directory assistance
operator. In such a case, Metro One shall charge Sprint Spectrum
the per call fee in Section 6.a. (Compensation and Term) only,
not the LEC's fees.
ii) System and Software Maintenance. Metro One will maintain each
Metro One Call Center in such manner as to ensure calendar
quarterly System availability equal to or greater than 99.950%,
excluding scheduled maintenance which shall be mutually agreed to
in writing, within a given service year for the provision of the
EDA services. Metro One will maintain the System in such manner
as to ensure calendar quarterly System availability equal to or
greater than 99.900%, excluding scheduled maintenance which shall
be mutually agreed to in writing, within a given service year for
the provision of the EDA services. Without limiting the
generality of the foregoing, Metro One will maintain and update
the System (including, without limitation, the databases) as
needed. Metro One will also maintain appropriate System backup
procedures and an appropriate disaster recovery plan, as
specified in Exhibit 7.
h. 911. Sprint Spectrum will not route 911 calls to Metro One. If an
emergency call is received by Metro One the Caller shall be asked to
dial "9-1-1" after disconnecting, except as otherwise required by
applicable law.
i. MULTIPLE REQUESTS. Callers shall be entitled to a maximum of four (4)
directory assistance requests per Call, including StarBack and
AutoBack.
j. MULTIPLE LISTINGS. When the System indicates that more than one
address or telephone number pertains to a directory assistance
request, Metro One shall, at the Caller's request, provide up to four
(4) multiple addresses and telephone numbers at no additional charge.
k. ALTERNATE BILLING. Callers who request "credit" or "calling" card
services shall be advised to dial "0" or "00" after disconnecting to
reach the appropriate operator for such services or other mutually
agreed instructions.
l. TIMELINE. Exhibit 1 details currently planned Call Origination Areas
and Exhibit 10 will delineate the timeline and method of provisioning
EDA services. An implementation plan will be established and mutually
agreed upon for each Call Origination Area. Exhibit 2 details the
cities where Metro One agrees to begin building new call centers
within the first eighteen (18) months of this Agreement upon
Sprint Spectrum / Metro One Page 9 of 61
CONTRACT NUMBER: 96-0053
occurrence of certain conditions outlined in this Section. Exhibit 1
and 2 may be amended from time to time with mutual written agreement
by both parties as to the location and the method of provisioning EDA
services.
i) Sprint Spectrum may add to the Call Origination Area from time
to time with sixty (60) days prior written mutual agreement of
the parties.
ii) ***
iii) In cities not listed on Exhibit 2 or cities listed on Exhibit 2
that have not yet reached the required 50,000 Calls per month,
EDA Service delivery will be made available to Sprint Spectrum
by Metro One from an existing Metro One call center listed on
Exhibit 3 ("Metro One Call Centers"), on a date mutually agreed
upon in writing by the parties. EDA Service delivery for such
cities will be made available to Sprint Spectrum by Metro One
within sixty (60) days after written notice.
iv) Upon request of Sprint Spectrum, Metro One will provide
additional language EDA services within a time frame and manner
mutually agreed upon by and between the parties.
m. SYSTEM FAILURE. A System Failure is defined as the inability of either
party to provide EDA services to Callers for a period of more than
five (5) minutes. During any System Failure, Sprint Spectrum may
direct all EDA calls to any Third Party selected by Sprint Spectrum,
until such time as notice is given, provided by telephone and
facsimile, from Metro One as to the date and time on which EDA
services are available.
i) Each party shall, as soon as it becomes aware of any System
Failure, notify the other of the System Failure by telephone
and facsimile (the "Failure Notice" as shown in Exhibit 7). The
prioritized list of all addresses, facsimile numbers and
telephone numbers for the parties related to the Failure Notice
is attached as Exhibit 7.
ii) Metro One will provide for all planning and requirements
associated with establishing and maintaining a disaster
recovery plan as set forth in Exhibit 7. Such disaster
recovery plan will set forth the service levels to be
maintained in the event the disaster recovery plan is
implemented.
Sprint Spectrum / Metro One Page 10 of 61
CONTRACT NUMBER: 96-0053
n. EDA SERVICES NUMBERS. Sprint Spectrum shall route to Metro One all
411, 1-411, 555-1212, 0-000-0000, (NPA)-555-1212 and 1-(NPA)-555-1212
calls originating in the Call Origination Area and Terminating in the
Call Termination Area or any other standard Directory Assistance
routing method that may be assigned and/or used as its successor. In
the event national numbering standards or direction from competent
jurisdiction should mandate a change to the above listed directory
assistance access numbers, Sprint Spectrum shall route all calls to
such successor numbers as described above.
o. 800 directory assistance calls are excluded from this Agreement.
p. SERVICES WARRANTY. Each Metro One employee, subcontractor, or agent
assigned to render Services under this Agreement has the proper
expertise, skills, training, and professional education to perform the
Services required under this Agreement in a professional manner and
consistent with the service levels set forth in Exhibit 5.
Any defects in workmanship shall be corrected promptly at the sole
expense of Metro One. Metro One shall, at all times, employ such
materials, tools, equipment, facilities, and labor to perform the work
as specified in the related Work Request Form, Exhibit 11.
q. NON-INFRINGEMENT WARRANTY. Metro One has full power and authority to
use the Software as described under this Agreement, and such use will
in no way constitute an infringement or other violation of any
copyright, patent, trade secret, trademark, nondisclosure, or any
other intellectual property right, moral right, or right of publicity.
r. ***
s. DATA SOURCE PRIORITY. Metro One will use its internal database(s) as a
first source to fulfill Caller EDA requests for listings within the
Call Origination Area. By September 1997 Metro One will query its
internal database(s) for nationwide queries as a first source in
fulfilling Caller EDA requests within the Call Termination Area.
3. INTERFACE AND SUPPORT
a. FACILITIES. Metro One shall maintain adequate and appropriate office
facilities, support facilities and other facilities and equipment
necessary to enable Metro One to perform its obligations under this
Agreement.
b. TELECOMMUNICATIONS EQUIPMENT. Sprint Spectrum will, at its expense,
establish and maintain all T-1 trunk lines and other
telecommunications facilities and equipment needed for adequate
performance between Sprint Spectrum's directed network and the
building minimum point of termination for Metro One's location for
purposes of
Sprint Spectrum / Metro One Page 11 of 61
CONTRACT NUMBER: 96-0053
performing the EDA services. Metro One shall be responsible for
establishing, maintaining, and paying for all other telecommunications
facilities and equipment necessary to perform the EDA services,
including but not limited to, those required for interconnection from
Metro One to the on-line LEC database.
c. (i) LOCAL CALLING ONLY CALLERS. As part of Metro One's EDA service,
and if Sprint Spectrum requests such service, Metro One agrees to
develop and make available to Sprint Spectrum, at no cost, a solution
using its Carrier Identification Code (CIC) to identify and thus block
Sprint Spectrum's customers that are restricted from making long
distance calls from long distance EDA call completion. Sprint Spectrum
will forward with each call the customer's Primary Interexchange
Carrier (PIC). In the event the customer is limited to local calling
only, Sprint Spectrum will forward Metro One's CIC. For such limited
calling customers Sprint Spectrum will provide specific direction to
Metro One on the options to be provided to the calling customer ninety
(90) days prior to initial service. Sprint Spectrum may change these
directions at any time with ninety (90) days notice to Metro One.
Further, Metro One agrees to allow Sprint Spectrum the right to use
its Carrier Identification Code for similar purposes at no charge to
Sprint Spectrum. Sprint Spectrum's right to use Metro One's CIC will
remain available for the earlier of the termination of this Agreement
or until such time as Sprint Spectrum informs Metro One that it no
longer requires use of the code. In the event this Agreement is
terminated by either party Sprint Spectrum will retain the right to
use Metro One's CIC for a period of time not less than six (6) months
and not more than eighteen (18) months.
(ii) P2K EXTRACT. Prior to Launch Metro One will develop the ability
to query Sprint Spectrum's P2K extract to determine if a Caller is
permitted long distance completion.
d. BILLING. Metro One will provide to Sprint Spectrum, or a Third Party
designated by Sprint Spectrum, Call Detail Records (CDR) for all call
types performed by Metro One, and specified by Sprint Spectrum in
writing with sixty (60) days advance written notice. The specific
record format is detailed in Exhibit 9. To aid in this process Sprint
Spectrum will provide to Metro One a list of all NPA NXXs that are to
be considered local calls for each trunk group and/or cell site and/or
local calling area. The NPA NXX information will be delivered not
less than fourteen (14) days, or shorter if mutually agreed to by the
parties, prior to traffic being delivered to Metro One on each trunk
group and/or cell site and/or local calling area. Metro One will send
CDRs to Sprint Spectrum, or a Third Party designated by Sprint
Spectrum, in near real time electronic transmission from a single
point as outlined in Exhibit 5 "Service Level Standards".
e. SS7 AND IS-41. Metro One will have SS7 links with Sprint Spectrum.
Metro One will be responsible for system improvements, at Metro One's
sole expense, to facilitate SS7 compliancy. Metro One shall comply
with BellCore document TR394 by March, 1997. IS-41 access to Sprint
Spectrum's home location register will be available by August 1997.
Sprint Spectrum / Metro One Page 12 of 61
CONTRACT NUMBER: 96-0053
f. SPRINT SPECTRUM CALLER RESTRICTIONS. Sprint Spectrum reserves the
right, at Sprint Spectrum's sole discretion, to restrict Enhanced
Directory Assistance-Registered Trademark- service for certain
Callers.
g. NPA NXX DATA. Sprint Spectrum shall provide Metro One NPA NXX data to
be used for each Call Origination Area ninety (90) days prior to Metro
One providing EDA Services in that Call Origination Area.
4. PERSONNEL
Metro One agrees to provide the appropriate quantity and skill level of
resources to provide the following services, and any other work related to
the startup transition, to Sprint Spectrum:
Metro One agrees to provide necessary resources, management, personnel,
expertise, and services required to provide Sprint Spectrum an efficient,
responsive, and fully integrated EDA Service. Metro One will communicate
directly and effectively, in a medium(s) mutually agreed to by the parties,
with any Sprint Spectrum suppliers regarding any transition throughout this
Agreement.
a. SERVICES IMPLEMENTATION. The implementation of Metro One's EDA
Services, and Service Levels, have been jointly defined in a plan that
is incorporated into and made a part of this Agreement as Exhibits 5
and 10. Both parties can initiate modifications to the plan, and upon
mutual agreement, such modifications will be incorporated into the
plan. The parties will commit resources to meet the Milestones of the
plan.
b. MILESTONES. Milestones will be incorporated into the implementation
plan as Exhibit 10.
c. SERVICE LEVELS. All Service Level are effective upon commercial
availability of EDA Services to Callers. Additional Service Levels may
be mutually agreed to and incorporated into this Agreement.
d. SPRINT SPECTRUM'S AGENTS, CONTRACTORS, AND THIRD PARTIES. Metro One
agrees to provide cooperative and professional interaction with Sprint
Spectrum and any Sprint Spectrum agents, contractors and third parties
during the Implementation and any subsequent interaction.
e. CUSTOMER SERVICE. Sprint Spectrum may notify Metro One if, in Sprint
Spectrum's opinion, any Metro One employee performing EDA services is
unqualified, discourteous or fails to conform to Sprint Spectrum's
standards for customer service. Metro One shall take such prompt
action as it deems reasonable to correct such non-conformance.
f. PROJECT MANAGER. Metro One shall make available a Metro One employee,
herein referred to as the "Project Manager", to be Sprint Spectrum's
single-point-of-contact
Sprint Spectrum / Metro One Page 13 of 61
CONTRACT NUMBER: 96-0053
for the term of this Agreement. The Project Manager shall a) be
available to Sprint Spectrum at all reasonable times; b) be responsive
to Sprint Spectrum's questions, problems and concerns; c) be the
liaison between Metro One and Sprint Spectrum for planning and
implementation; and d) have the authority to make necessary decisions
and enlist necessary resources to ensure successful completion of all
contracted work within the mutually agreed upon time frames. If Sprint
Spectrum determines the Project Manager is not providing adequate
service, Metro One shall make available a different Project Manager to
Sprint Spectrum.
5. GOVERNMENT APPROVALS AND FEDERAL REQUIREMENTS
a. Sprint Spectrum shall obtain all necessary regulatory approvals
required of it for the provision of EDA services in the Call
Termination Area. To the extent necessary, Metro One and Sprint
Spectrum shall reasonably cooperate with each other in order to obtain
such approvals.
b. If Sprint Spectrum or the federal government determines that this
Agreement supports specific requirements included in a customer
contract or subcontract with the federal government, to the extent
that executive orders and associated regulations apply to Metro One,
Metro One will make its best efforts to comply with those orders and
regulations.
6. COMPENSATION AND TERM
a. ***
b. INVOICES. Metro One shall provide Sprint Spectrum with, and Sprint
Spectrum shall have received, EDA call count volume records in the
format shown in Exhibit 6 by the tenth of each month for the previous
month's calls, which records shall be made part of Metro One's invoice
to Sprint Spectrum.
EDA call count volume records and electronic CDR files shall not be
delivered to Sprint Spectrum or Sprint Spectrum's designated
representative after sixty (60) days of the actual call date and such
calls will not be charged to Sprint Spectrum.
c. PAYMENT TERMS.
i.) When invoicing for EDA Services payment terms are fifty (50)
days after the date of an invoice in the form of Exhibit 6.
Invoices shall be mailed on or before the tenth (10th) day of
the month of the date of invoice. Sprint Spectrum requires that
Metro One provide the Purchase Order and/or Contract Number as
appropriate, on all invoices. If payment is not made when due
Metro One will provide Sprint Spectrum written notice of
non-payment. If
Sprint Spectrum / Metro One Page 14 of 61
CONTRACT NUMBER: 96-0053
payment is not made within a ten (10) day cure period following
the receipt of written notice, Metro One will follow the
process for resolution as set forth in Section 14. Any
undisputed portion of an invoice paid after fifty (50) days
from the date of invoice shall incur interest in the amount of
one and one half percent (1.5%) a month from fifty (50) days of
the date of invoice until paid.
Sprint Spectrum will deduct any disputed amounts from the
applicable Metro One invoice. Disputed amounts are not to be
considered a late payment or default under this Agreement.
Metro One agrees that disputed amount payments may be withheld
from pending Sprint Spectrum payments until such time as both
parties agree as to the disposition of the disputed amount or
until the dispute is resolved pursuant to Section 14 of this
Agreement. Disputed amounts will be paid, if owed, within
thirty (30) days of resolution of the dispute. The undisputed
portion of an invoice will be paid within fifty (50) days of
the date of the invoice.
ii.) When invoicing for Services, payment terms are net fifty (50)
days after the date of an invoice, but no earlier than the date
of Sprint Spectrum's final acceptance of any Software and/or
Services. In addition to the instructions provided in 6.c.i,
which also apply to invoicing for Services, Metro One must
maintain and submit, as applicable, itemized time records and
expense reports with each invoice. Metro One will be
reimbursed, at reasonable and actual costs, for travel, living,
and other expenses incurred by Metro One's technical support
personnel and authorized by Sprint Spectrum's Work Request.
d. INVOICE ADDRESS. Invoices shall be mailed to Sprint Spectrum on or
before the tenth (10th) day of the month of the date of invoice at the
following address:
Original sent to: Sprint Spectrum L.P.
Attn: Accounts Payable
0000 Xxxxx Xxx.
Kansas City, Missouri 64112
With a copy to: Sprint Spectrum L.P.
Attn: Manager - Directory Assistance
0000 Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
e. TAXES, DUTIES, AND FEES. Metro One will pay when due, all local,
state, and federal sales and use taxes, excise taxes, taxes on
personal property owned by Metro One, duties, and all other
governmental fees and taxes (excluding income taxes) of whatever
nature applicable to the performance of Metro One's technical support
services required under this Agreement.
f. TERM. Except as provided in Section 15 ("Termination") below, the term
of this Agreement begins on the Effective Date and continues ***
Sprint Spectrum / Metro One Page 15 of 61
CONTRACT NUMBER: 96-0053
***("Initial Term"). This Agreement will automatically renew for
successive one (1) year terms unless terminated by either party
with ninety (90) days written notice prior to the next ensuing
renewal period.
7. MARKETING
Sprint Spectrum shall have sole and exclusive control of the manner of
publicizing, advertising and marketing the EDA services provided under this
Agreement in the Call Termination Area. Without limiting the generality of
the foregoing, Sprint Spectrum shall be responsible for the following:
a. Establish the rates and other terms and conditions under which the EDA
services will be available to Callers.
b. Conduct such promotional programs and advertising of the EDA services
as is commercially reasonable after notifying Metro One in writing of
such promotional programs and advertising.
8. PUBLICITY/TRADEMARK/SERVICE XXXX
x. Metro One will not, without Sprint Spectrum's prior written consent
and such consent will not be unreasonably withheld:
i) make any news release, public announcement, or denial or
confirmation of this Agreement or its subject matter; or
ii) in any manner advertise or publish the fact of this Agreement.
Notwithstanding the foregoing, Metro One may make such
announcements upon advice of its counsel that such announcement
is reasonably required, by generally accepted accounting
principles (GAAP), SEC requirement or other statutory or
regulatory obligation.
b. Sprint Spectrum shall own its trademarks and service marks, and Metro
One will acquire no rights in such marks. Metro One acknowledges the
validity of Sprint Spectrum's marks and will not challenge or assist
others in challenging the validity and Sprint Spectrum's sole
ownership of such marks.
c. Metro One shall own its trademarks and service marks, including but
not limited to the Metro One Telecommunications, Inc.-Registered
Trademark-Enhanced Directory Assistance-Registered Trademark-, The
Enhanced Directory Assistance People-Registered Trademark-,
StarBack!-Registered Trademark-, SureConnect-TM-, AutoBack-TM-,
CallBack-TM-, MessageBack-TM-, TeleConcierge-TM- and NumberBack-TM-
service marks, and Sprint Spectrum will acquire no rights in such
marks, other than the non-exclusive license set forth in Section
8.e of this Agreement. Sprint Spectrum acknowledges the
Sprint Spectrum / Metro One Page 16 of 61
CONTRACT NUMBER: 96-0053
validity of Metro One's marks and will not challenge or assist others
in challenging the validity and Metro One's sole ownership of such
marks.
d. Each party acknowledges the goodwill associated with the other's
trademarks and service marks. Except as provided herein, neither party
will use any mark owned by the other without prior written consent.
Neither party shall register any of the other party's trademarks,
service marks or trade names.
e. Metro One hereby grants Sprint Spectrum a non-exclusive license to use
the Metro One Telecommunications-Registered Trademark-, Enhanced
Directory Assistance-Registered Trademark-, The Enhanced Directory
Assistance People-Registered Trademark-, StarBack-Registered
Trademark-, SureConnect-TM-, AutoBack-TM-, CallBack-TM-,
MessageBack-TM-, TeleConcierge-TM- and NumberBack-TM-service marks
in Sprint Spectrum's marketing of EDA services within the Call
Origination Area during the term of this Agreement.
f. If a party uses a mark owned by the other, the use of the mark shall
be only in accordance with the guidance and directions furnished in
writing by the owner of the mark, and the quality of any associated
goods or services must always be satisfactory to the owner of the
mark.
9. ASSISTANCE
Each party shall provide the other reasonable assistance in any matters
affecting this Agreement before any insurer, governmental xxxxxxxxx, xxxxx
association or other organization. Such assistance may include preparing
and furnishing documents, providing advice and providing qualified
personnel to participate in hearings or other proceedings.
10. RECORDS
During the term of this Agreement both parties shall maintain complete and
accurate records of each call using the EDA services, and shall provide the
other access to such records upon request, subject to Section 31, Right of
Audit. Records shall be in the format provided in Exhibit 9, as amended
from time to time by mutual written agreement. The records shall include
the following:
a. The date and time the call is received;
b. The telephone number of the Caller; and
c. The number to which the call is connected.
11. COMPLAINTS
a. PROMOTE GOODWILL. Metro One, its agents, officers, employees and
Operators shall at
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CONTRACT NUMBER: 96-0053
all times interact with Callers in a respectful and courteous manner.
Both parties will refrain from any action that could reasonably be
anticipated to discredit or damage the name, reputation, goodwill or
good public relations of the other. Each party will use its best
efforts to investigate and respond to all oral or written complaints
received by Sprint Spectrum or Metro One from any Caller arising out
of or in connection with such party's obligations under this
Agreement. In handling any complaints, each party will use its best
efforts to maintain and promote the goodwill of and good public
relations of the other party.
b. COMPLAINTS. Both parties shall refrain from any action that could
reasonably be anticipated to discredit or damage the name, reputation,
goodwill or good public relations of the other. Each party shall use
its best efforts to investigate and respond to all oral or written
complaints received by Sprint Spectrum or Metro One from any Caller
arising out of or in connection with such party's obligations under
this Agreement. In handling any complaints, each party shall use its
best efforts to maintain and promote the goodwill of and good public
relations of the other party.
If Sprint Spectrum receives a complaint from a Caller, and the nature
of the complaint deserves immediate attention, Sprint Spectrum will
promptly notify Metro One's Project manager by telephone and / or
pager. The Project Manager will promptly take whatever reasonable
action is necessary to investigate the complaint and respond back to
Sprint Spectrum in a reasonable time frame outlined in Exhibit 5
Service Level Standards. If Metro One receives a complaint from a
Caller, and the nature of the complaint deserves immediate attention,
Metro One's Project Manager will promptly notify Sprint Spectrum's
designated representative by telephone and / or pager.
Both parties shall document any and all complaints from Callers and
others, whether verbal or written, and notify the other, in writing,
within five (5) business days of receipt of such complaint. Both
parties' notice to each other shall set forth the name and telephone
number of the complaining party, the time and nature of the complaint,
and a description of any action taken (or proposed to be taken) by
both parties in connection with the complaint. Both parties shall
provide each other with a copy of all written complaints. In handling
any complaint, both parties shall maintain and promote the goodwill of
Metro One and Sprint Spectrum.
12. CONFIDENTIAL INFORMATION
During the course of the Services, the parties may be given access to
information that (a) relates to the other's past, present, and future
research, development, business activities, products, services, and
technical knowledge, and (b) has been identified as confidential
("Confidential Information"). In connection therewith, the following
subsections shall apply:
a. The Confidential Information of Sprint Spectrum may be used by Metro
One only in connection with the Services. Sprint Spectrum's
Confidential Information may only be copied by Metro One corporate
staff as necessary to perform the Services under this
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CONTRACT NUMBER: 96-0053
Agreement. Individuals performing Services under this Agreement in
Metro One call centers may not copy Sprint Spectrum's Confidential
Information;
b. The Confidential Information of Metro One may be used by Sprint
Spectrum only for its internal business purposes and only to the
extent related to the Services. Without limiting the foregoing, Sprint
Spectrum shall be expressly prohibited from using the Confidential
Information of Metro One to provide services in competition with Metro
One's EDA service or to assist others in performing EDA Services in
any market or Call Origination Area served by Metro One;
c. Each party agrees to protect the confidentiality of the Confidential
Information of the other in the same manner that it protects the
confidentiality of its own proprietary and confidential information of
like kind. Access to the Confidential Information shall be restricted
to those personnel with a need to know the same;
d. All Confidential Information shall be considered trade secrets and
shall be entitled to all protections given by law to trade secrets. In
no event shall either party use the Confidential Information of the
other party to reverse engineer or otherwise develop products or
services functionally equivalent to the products or services of the
disclosing party;
e. All Confidential Information made available hereunder, including
copies thereof, shall be returned upon the first to occur of (a)
completion of the Services or (b) request by the disclosure;
f. Nothing in this Agreement shall prohibit or limit either party's use
of information (including, but not limited to, ideas, concepts,
know-how, techniques, and methodologies) (i) previously known to it,
(ii) independently developed by it, (iii) acquired by it from a Third
Party which is not, to its knowledge, under an obligation not to
disclose such information, or (iv) which is or becomes publicly
available through no breach of this Agreement; and
g. In the event either party receives a subpoena or other validly issued
administrative or judicial process requesting Confidential Information
of the other party, it shall provide prompt notice to the other of
such receipt with the opportunity to contest such disclosure. The
party receiving the subpoena shall thereafter be entitled to comply
with such subpoena or other process to the extent permitted by law.
h. The parties acknowledge that disclosure of Confidential Information by
the other party will cause irreparable to the other party that is
inadequately compensable in monetary damages. Accordingly, the
aggrieved party may seek injunctive relief in any court of competent
jurisdiction for the breach or threatened breach of this section, in
addition to any other remedies in law or equity.
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CONTRACT NUMBER: 96-0053
13. INDEMNIFICATION AND LIABILITY
a. Sprint Spectrum and Metro One agree to defend, indemnify, and hold
harmless the other (the "Indemnified Party"), its employees and
agents, its affiliates and its successors and assigns from and against
all losses, damages, and liability (including all claims, actions,
suits, fines, interest, penalties, costs and expenses) including
reasonable attorney's fees incurred by indemnitee before the
indemnitors act or where indemnitee reasonably fears the adequacy of
the defense provided incurred on account thereof, incident, relative
to or arising from (i) any claim relating to the subject matter of a
misrepresentation or breach of covenant, representation or warranty of
the Indemnifying Party contained herein, and (ii) any injury to any
Indemnifying Party employee or agent, including death to persons, or
damage to property, including theft, resulting from the acts or
omissions of the Indemnifying Party, its employees or agents whether
negligent or otherwise, (iii) any claim of infringement of a patent,
copyright trademark or other legally protected proprietary right of
any third party and (iv) any injury to any person (including death) or
damage to tangible property (including theft) resulting from the acts
or omissions of the Indemnifying Party, its employees or agents,
whether negligent or otherwise.
b. NOTICE OF CLAIMS. The obligations of Indemnifying Party stated in
Section 13.a. above apply only if (i) Indemnified Party shall promptly
inform Indemnifying Party in writing of any claim within the scope of
Section 13.a.; (ii) Indemnifying Party is given exclusive control of
the defense of such claim and all negotiations relating to its
settlement, except that Indemnified Party shall have final approval of
settlement provisions; and (iii) Indemnified Party shall assist
Indemnifying Party in all necessary respects in conduct of the suit
and settlement negotiations.
c. NO SPECIAL DAMAGES. Except for the indemnity provisions contained in
this Article 13, neither party will be liable to the other for
special, indirect, or consequential loss or damage, whether or not
such loss or damage is caused by the fault or negligence of that
party, its employees, agents, or subcontractors.
d. SURVIVAL OF INDEMNITY. Indemnity obligations for acts arising prior to
expiration or termination of this Agreement under this Article 13 will
survive any expiration or termination of this Agreement or the Orders
hereunder for a period of three (3) years following any expiration or
termination of this Agreement or the Orders hereunder.
e. NO LIABILITY LIMITATION. No limitation of liability contained in this
Agreement will be applicable in the event of indemnitor's gross
negligence or intentional misconduct, or in the event of personal
injury or property damage. Furthermore, no limitation of liability
contained in this Agreement will apply with respect to any indemnitor
liability arising under or relating to Section 2.q or Article 13
hereof.
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CONTRACT NUMBER: 96-0053
14. DISPUTE RESOLUTION
a. NEGOTIATION. The parties will attempt in good faith to resolve any
issue, dispute, or controversy arising out of or relating to this
Agreement, including but not limited to any Section of this Agreement
that requires mutual agreement of the parties, promptly by negotiation
between the parties' representatives who have authority to settle any
issue, dispute, or controversy. Any party may give the other party
written notice of any dispute not resolved in the normal course of
business. Within ten (10) days after delivery of such notice,
representatives of both parties will meet at a mutually acceptable
time and place, and thereafter as often as they reasonably deem
necessary, to exchange relevant information and to attempt to resolve
the dispute by the respective representatives of Metro One and Sprint
Spectrum within the time frames here:
SPRINT SPECTRUM METRO ONE
--------------- ---------
Within 10 days Manager Directory Vice President
Assistance Call Center Operations
Within 20 days Director Partner Services Chief Operating Officer
Operations
Within 30 days Vice President President
Customer Care
If the matter has not been resolved within thirty (30) days of the
disputing party's notice, or if the parties fail to meet within ten
(10) days, either party may initiate mediation of the dispute as
provided below. If a negotiator intends to be accompanied at a meeting
by an attorney, the other negotiator will be given at least two (2)
business days notice of such intention and may also be accompanied by
an attorney. All negotiations pursuant to this clause are confidential
and will be treated as compromise and settlement negotiations for
purposes of the Federal Rules of Evidence and State Rules of Evidence.
b. MEDIATION. If the dispute has not been resolved by negotiation as
provided above, the parties will endeavor to settle the dispute by
mediation. If the parties encounter difficulty in agreeing on a Third
Party neutral, they will seek the assistance of the Center for Public
Resources in the selection process. The cost of mediation will be
borne equally by the parties.
c. ARBITRATION. Any dispute arising out of or relating to this Agreement
that has not been resolved by non-binding means as provided above
within thirty (30) days of the initiation of such procedure will be
finally settled by arbitration in accordance with the rules of the
American Arbitration Association applying the substantive law of
Missouri without regard to any conflict of laws provision; provided,
however, that if one party has requested the other to participate in a
non-binding procedure and the
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CONTRACT NUMBER: 96-0053
other has failed to participate, the requesting party may initiate
arbitration before expiration of the above period. The arbitration
will be governed by the United States Arbitration Act, 9 U.S.C.
Section 1, ET SEQ., and judgment upon the award rendered by the
arbitrator(s) may be entered by any court with jurisdiction. The
arbitration will be held in the Kansas City, Missouri metropolitan
area. The arbitrator(s) are not empowered to award damages in
excess of compensatory damages and each party waives any damages in
excess of compensatory damages.
d. CONTINUING PERFORMANCE. Metro One agrees to continue performance
during the pendency of any dispute, unless performance is terminated
by Sprint Spectrum under Section 14. Sprint Spectrum agrees to
continue to pay all non-disputed invoice amounts.
e. LIMITATION OF CLAIMS. No Claim may be brought by Metro One after
Sprint Spectrum has made final payment to Metro One and Metro One has
accepted such final payment. Claims made by Metro One may only be
brought against the Sprint Spectrum Affiliate which issued the Request
for Services or Work Request giving rise to the Claim.
15. TERMINATION
a. DEFAULT. In the event of any material breach of this Agreement by
either party, the non-breaching party will give the breaching party
written notice specifying such breach. The breaching party will then
have thirty (30) days to cure the breach. Failure to cure any such
breach, including Metro One breach of any of the Service Levels set
forth in Exhibit 5, and modifications thereto, in accordance with this
agreement, will constitute a default hereunder. No default under this
Agreement will constitute a default under any other agreement.
b. TERMINATION UPON METRO ONE MERGER OR SALE TO COMPETITOR. This
Agreement and/or Work Requests hereto, may be terminated by Sprint
Spectrum without penalty if there is any merger, consolidation, or
sale of all of the assets of Metro One to or with a Competitor of
Sprint Spectrum, or if Metro One becomes a Competitor of Sprint
Spectrum. Metro One must give Sprint Spectrum no less than thirty (30)
days written notice of any merger, consolidation, or sale of all of
the assets of Metro One.
c. TERMINATION FOR OTHER CAUSES. Either party may terminate this
Agreement upon the occurrence of any of the following events by giving
thirty (30) days written notice to the other:
i. If at any time after one (1) year of commercially available
service the average monthly call volume for the preceding three
(3) months is less than seventy percent (70%) of the average
monthly call volume for the same three (3) month period in the
preceding year; or
ii. If any circumstance would render the continued performance of
this Agreement by either party in violation of any applicable
law, statute, rule or regulation
Sprint Spectrum / Metro One Page 22 of 61
CONTRACT NUMBER: 96-0053
despite the parties' good faith efforts to rewrite the terms of
this Agreement.
d. RETURN OF SPRINT SPECTRUM-OWNED PROPERTY. All equipment, materials,
drawings, Software or data of every description that Metro One
receives directly or indirectly from Sprint Spectrum or from a Third
Party on behalf of Sprint Spectrum, or that is paid for, in whole or
in part, by Sprint Spectrum, is the property of Sprint Spectrum
("Sprint Spectrum-owned"). Metro One must return all Sprint
Spectrum-owned property to Sprint Spectrum within twenty (20) business
days upon Sprint Spectrum's request, or upon the termination or
expiration of this Agreement, as Sprint Spectrum determines. Metro One
is responsible and must account for all Sprint Spectrum-owned
property, and bears the risk of loss while the property is in Metro
One's possession. Sprint Spectrum-owned property may only be used in
Metro One's performance of this Agreement.
e. RETURN OF METRO ONE-OWNED PROPERTY. All equipment, materials,
drawings, Software or data of every description that Sprint Spectrum
receives directly or indirectly from Metro One or from a Third Party
on behalf of Metro One, or that is paid for, in whole or in part, by
Metro One, is the property of Metro One ("Metro One-owned"). Sprint
Spectrum must return all Metro One-owned property to Metro One within
twenty (20) business days upon Metro One's request, or upon the
termination or expiration of this Agreement, as Metro One determines.
Sprint Spectrum is responsible and must account for all Metro
One-owned property, and bears the risk of loss while the property is
in Sprint Spectrum's possession. Metro One-owned property may only be
used in Sprint Spectrum's performance of this Agreement.
f. WIND-DOWN TRANSITION. Upon receipt of notice from Sprint Spectrum of
termination of this Agreement, Metro One agrees to continue providing
Services under this Agreement until the effective date of the
termination as provided by Sprint Spectrum. Metro One agrees to
provide cooperative and professional interaction with Sprint Spectrum
during the wind-down transition and any subsequent interaction.
g.
i.
***
ii.
Sprint Spectrum / Metro One Page 23 of 61
CONTRACT NUMBER: 96-0053
iii. ***
iv. If the contract is assigned pursuant to Section 16. c. below,
or the entity to whom the license was transferred or sold has
EDA Services provided by Metro One for the affected Call
Origination Area with terms and conditions comparable to this
Agreement, then the obligations of Sprint Spectrum with respect
to the affected Call Origination Area cease upon successful
transfer of the obligations hereunder.
16. AFFILIATES, ASSIGNMENT AND SUBCONTRACTING
a. ***
b. AFFILIATE RIGHTS. Notwithstanding anything herein to the contrary,
Sprint Spectrum Affiliates may exercise the right to place Work
Requests under this Agreement. Work Requests placed by Affiliates may
provide for specific requirements that differ from time to time, from
the requirements set forth in this Agreement. Metro One and the
requesting Affiliate will negotiate any such differences in good
faith.
Sprint Spectrum / Metro One Page 24 of 61
CONTRACT NUMBER: 96-0053
c. ASSIGNMENT. Sprint Spectrum may transfer, sublicense, or assign this
Agreement and any Work Request or license hereunder to any Sprint
Spectrum Affiliate or any Partner without the prior consent of Metro
One. Notwithstanding the foregoing, any successor in interest by
merger, operation of law, or purchase of the entire or substantially
all of the business or assets of either party may acquire all interest
and be subject to all obligations of such party hereunder. Otherwise,
neither party may assign this Agreement nor any of its rights nor
delegate its obligations hereunder without the prior written consent
of the other party, and any such written consent will not be
unreasonably withheld. No assignment will relieve either party of its
obligations hereunder. This Agreement will be binding upon the
parties' successors and permitted assigns.
d. SUBCONTRACTING. Metro One may not subcontract any portion of the
Services, without prior written consent of Sprint Spectrum's Director,
Negotiations, and such consent will not be unreasonably withheld, and
will remain fully liable for the Services and all other obligations
under this Agreement and for the acts or omissions of any
subcontractor. Metro One must request in writing for approval of
subcontractors, including but not limited to, the specific work
function, timeframe, name, address, and contact number. Approved
initial subcontractors will be listed in Exhibit 12 and will be
revised as others are agreed upon.
e. CONFIDENTIALITY AND OTHER PROVISIONS OF THIS AGREEMENT. Any Sprint
Spectrum Affiliate entering into an executed Work Request (Exhibit
11), will be bound, and Metro One will also be bound, by all
provisions of this Agreement as applicable to the Work Request.
f. CONFIDENTIALITY WITH RESPECT TO AFFILIATES. If any Sprint Spectrum
Affiliate listed in Exhibit 13 hereto, which has contracted for Metro
One services by way of a Work Request Form hereunder, by merger,
acquisition or otherwise acquires an interest other than a passive
investment interest in a competitor of Metro One listed in Exhibit 14
hereto (as it may be hereafter amended by mutual consent of the
parties), the confidentiality provisions of Section 12 of this
Agreement shall fully pertain as regards protection of proprietary
information of Metro One from disclosure to such competitor.
17. UCC
This Agreement shall be subject to the provisions of the Uniform Commercial
Code as adopted in Missouri.
18. SERVICE TESTING/QUALITY ASSURANCE
Unless Sprint Spectrum is prohibited by law and if Sprint Spectrum has
adequate supply, Sprint Spectrum shall provide Metro One at Sprint
Spectrum's expense one (1) wireless telephone and access on Sprint
Spectrum's system for technical support and quality control of the Metro
One System for each Metro One call center that resides within a Call
Origination
Sprint Spectrum / Metro One Page 25 of 61
CONTRACT NUMBER: 96-0053
Area. Additionally, Sprint Spectrum shall provide Metro One at Sprint
Spectrum's expense one (1) landline access line into each Call Origination
Area on Sprint Spectrum's system for technical support and quality control
of the Metro One System for each Metro One call center providing EDA
Services under this Agreement.
Unless Metro One is prohibited by law, Metro One will provide Sprint
Spectrum with remote access monitoring capabilities, to the Metro One
System, for quality assurance purposes.
19. SURVIVAL OF OBLIGATIONS
The obligations set forth in Sections 8 ("Publicity/Trademark/
Servicemark"), 12 ("Confidential Information") and in this Section 19
hereof will survive the termination or expiration of this Agreement, in
addition to any other provisions that, by their content, are intended to
survive the performance, termination, or cancellation of this Agreement.
20. CAPTIONS
Section captions are inserted only for convenience and are in no way to be
construed as part of this Agreement.
21. NOTICES
Notices required by this Agreement must be sent by certified mail, return
receipt requested, to the address listed below, or to such address as the
parties may from time to time by notice provide.
To Metro One: Metro One Telecommunications, Inc.
0000 X.X. Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To Sprint Spectrum: Sprint Spectrum L.P.
0000 Xxxx
Xxxxxx Xxxx, XX 00000
Attn: Director, Negotiations
Phone: (000) 000-0000
Fax:(000) 000-0000
Notice shall be deemed effective on the date the return receipt shows the
notice was accepted or refused.
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CONTRACT NUMBER: 96-0053
22. ENTIRE AGREEMENT
This Agreement and the Exhibits attached hereto constitute the entire
Agreement between the parties, and supersedes any and all prior
negotiations, representations, correspondence, understandings and
agreements with respect to the subject matter hereof. No amendment or
modification of any of the terms of this Agreement will be effective unless
in writing signed by both parties.
23. SEVERABILITY
If for any reason any provision of this Agreement shall be deemed by a
court of competent jurisdiction to be legally invalid or unenforceable, the
validity, legality and enforceability of the remainder of this Agreement
shall not be affected and such provision shall be deemed modified to the
minimum extent necessary to make such provision consistent with applicable
law, and, in its modified form, such provision shall then be enforceable
and enforced.
24. INDEPENDENT CONTRACTOR AND INSURANCE
It is agreed and understood that Metro One and Sprint Spectrum are not
agents, representatives or employees of each other.
INDEPENDENT CONTRACTORS. Metro One, its subcontractors, employees, or
agents are independent contractors for all purposes and at all times. Metro
One has the responsibility for, and control over, the means and details of
performing the technical support services, subject to Sprint Spectrum's
inspection. Metro One will provide all training, hiring, supervising, hours
of work, work policies and procedures, work rules, compensation, payment
for expenses, and discipline and termination of its employees.
INSURANCE. Metro One will obtain and maintain during the term of this
Agreement with financially reputable insurers, licensed to do business in
all jurisdictions where work is performed and that are reasonably
acceptable to Sprint Spectrum, not less than the following insurance:
i. Workers' Compensation as required under any Workers'
Compensation or similar law in the jurisdiction where work is
performed, with an Employer's Liability limit of not less than
$500,000 per accident. Workers Compensation insurance must
waive the insurer's right of subrogation against Sprint
Spectrum.
ii. Commercial General Liability, including coverage for
Contractual Liability and Products/Completed Operations
Liability, with a limit of not less than $1,000,000 combined
single limit per occurrence for bodily injury, personal injury,
and property damage liability, naming Sprint Spectrum as an
additional insured.
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CONTRACT NUMBER: 96-0053
iii. Business Auto Insurance covering the ownership, Maintenance,
or use of any owned, non-owned, or hired automobile with a
limit of not less than $1,000,000 combined single limit per
accident for bodily injury and property damage liability.
iv. Independent Contractor Liability coverage with a minimum
combined single limit of $1,000,000. If Metro One is utilizing
subcontractors in the performance of this Agreement and does
not carry Independent Contractors Liability Insurance, all
subcontractors will be required to meet the same insurance
requirements as Metro One.
vi. Metro One must, as a material condition of this Agreement, and
prior to commencement of any work hereunder and to any renewal
of insurance, deliver to Sprint Spectrum a certificate of
insurance, satisfactory in form and content to Sprint Spectrum,
evidencing that the above insurance is in force and will not be
canceled or materially altered without giving Sprint Spectrum
thirty (30) days prior written notice thereof.
vii. Nothing contained in this Section 24 limits Metro One's
liability to Sprint Spectrum to the limits of insurance
certified or carried.
25. NO THIRD PARTY BENEFICIARIES
Callers shall not be Third Party beneficiaries under this Agreement.
Nothing expressed or implied in this Agreement is intended or shall be
construed to confer or give any person other than Sprint Spectrum and Metro
One, their respective successors and permitted assigns any rights or
remedies under or by reason of this Agreement.
26. FORCE MAJEURE
Neither party is responsible for delays in performance caused by wars,
fires, strike, embargoes, priority exclusion of either party's business by
government authorities, transportation conditions (including
telecommunication transmission failures), material shortages, natural
disasters, severe weather or other causes beyond its reasonable control.
Such delays shall not be construed as a breach under Section 15
("Termination").
27. DEFAULT/REMEDIES
a. DEFAULT. In the event of any breach of this Agreement or Work Request
hereto by either party, the non-breaching party will give the
breaching party written notice specifying such breach. The breaching
party will then have thirty (30) days to cure the breach. Failure to
cure any such breach will constitute a default hereunder. No default
under this Agreement or any Work Request hereto will constitute a
default under any
Sprint Spectrum / Metro One Page 28 of 61
CONTRACT NUMBER: 96-0053
other agreement, license, or Work Request between the parties.
b. PERFORMANCE ADJUSTMENT. Metro One will incur liability to Sprint
Spectrum for Performance Adjustments, which will not be construed as a
penalty, for each and every failure to meet Deliverables and/or
Service Levels as set forth in Exhibit 5.
c. OTHER DAMAGES AND RELIEF. A breach of certain provisions of this
Agreement may cause either party irreparable injury and may be
inadequately compensable in monetary damages. The parties agree that
in such instances a court may grant either party injunctive relief,
specific performance and/or are not adequately compensable in money
damages, in addition to any other remedies which may be available.
Except as is otherwise provided in Section 13, neither party will be
liable to the other or any Third Party for loss of profits, loss of
business or indirect consequential or punitive damages. This
limitation is not intended to affect or eliminate Sprint Spectrum's
right to performance adjustment pursuant to Section 27.b.
28. WAIVER
The waiver or failure of any party to exercise any rights under this
Agreement shall not be deemed a waiver of any other right or any future
right.
29. APPLICABLE LAW
This Agreement will be governed by, construed and enforced in accordance
with the law of the State of Missouri, without regard to its principles of
conflicts of law.
30. METRO ONE WARRANTIES
a. GENERAL XXXXXXXX. Metro One warrants and represents that the System
shall function in accordance with all requirements of this Agreement,
including Sprint Spectrum and Metro One documents stipulating
performance criteria and standards, and current specifications and
descriptions published or disseminated by the System manufacturer(s)
as documented performance and operational procedures with respect to
each respective System as a whole as well as all individual component
and application elements of each System.
The Software will strictly conform to the description, definition,
specification, and functional requirements set forth in a Work Request
for development services hereto, and will be free from programming
errors and material defects in operational performance. Metro One
will, at its own expense, and in strict conformance with any Metro One
technical support requirements contained in this Agreement and the
Work Request hereto, promptly correct all deficiencies in the Software
reported by Sprint Spectrum during the warranty period set forth
herein, even if the period to perform
Sprint Spectrum / Metro One Page 29 of 61
CONTRACT NUMBER: 96-0053
those corrections extends beyond the Warranty period.
b. METRO ONE PERSONNEL WARRANTY. To the best of Metro One's knowledge,
after investigation, neither Metro One nor its personnel performing
Services under this Agreement has any existing obligation that would
violate or infringe upon the rights of third parties, including
property, contractual, employment, trademark, trade secrets,
copyright, patent, proprietary information and non-disclosure rights,
that might affect Metro One's ability to fulfill its obligations under
this Agreement.
c. ***
31. EMPLOYMENT PRACTICES
a. COMPLIANCE WITH LAWS. Metro One must comply with laws, regulations,
and orders relating to equal employment opportunity, workers'
compensation, unemployment compensation, and FICA. Upon request, Metro
One will furnish Sprint Spectrum with its EEO policies and procedures,
verification of workers' compensation, unemployment compensation,
FICA, and the number of hours any individual performs technical
support services for Sprint Spectrum within any twelve (12)
consecutive month period.
b. METRO ONE AGENTS. Sprint Spectrum will incur no responsibility or
obligation to employees, agents, subcontractors, or other parties
utilized by Metro One to perform the Services set forth in this
Agreement. Such person or parties will, at all times, remain
employees, agents, or subcontractors (whichever is applicable) of
Metro One.
c. PAYMENT OF WAGES. Metro One is solely responsible for payment of
wages, salaries, fringe benefits, and other compensation of, or
claimed by, Metro One's employees including, without limitation,
contributions to any employee benefit, medical, or savings plan, and
is responsible for all payroll taxes including, without limitation,
the withholding and payment of all federal, state, and local income
taxes, FICA, unemployment taxes, and all other payroll taxes. Metro
One is also solely responsible for compliance with applicable Workers'
Compensation laws with respect to maintenance of workers' compensation
coverage on Metro One's employees. Metro One will indemnify and defend
Sprint Spectrum from all claims by any person, government, or agency
relating to payment of taxes and benefits, including without
limitation, any penalties and interest which may be assessed against
Sprint Spectrum. Metro One will similarly indemnify and defend Sprint
Spectrum from all claims by
Sprint Spectrum / Metro One Page 30 of 61
CONTRACT NUMBER: 96-0053
any person or governmental agency which arise directly or indirectly
from any failure by Metro One to comply with applicable Workers'
Compensation laws with respect to maintenance of Workers' Compensation
coverage on Metro One's employees.
d. REQUIRED COMPLIANCE WITH AGREEMENT. The parties will require their
employees, agents, and subcontractors to comply with the terms and
conditions of this Agreement.
32. RIGHT OF AUDIT
Sprint Spectrum or its authorized representative will have the right to
audit Metro One's performance under this Agreement. The parties will
maintain all records and reports pertaining to this Agreement for a period
of at least three (3) years after Sprint Spectrum's final payment of all
undisputed amounts due hereunder, and shall provide the other access to
such records upon request. All audits will be conducted at a mutually
agreeable location during regular business hours during the term of this
Agreement and for the three (3) year period described above.
Notwithstanding the specified service levels in Exhibit 5, audits may be
conducted no more frequently than once annually.
33. ***
Sprint Spectrum / Metro One Page 31 of 61
CONTRACT NUMBER: 96-0053
Entered into as of the date first above written.
METRO ONE SPRINT SPECTRUM L.P.
TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Its: President Its: Vice President, Customer Care
Date: October 22, 1996 Date: October 23, 1996
Sprint Spectrum / Metro One Page 35 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 1 ***
Sprint Spectrum / Metro One Page 36 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 2 ***
Sprint Spectrum / Metro One Page 37 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 3 ***
Sprint Spectrum / Metro One Page 38 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 4 ***
Sprint Spectrum / Metro One Page 39 of 61
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EXHIBIT 4 ***
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CONTRACT NUMBER: 96-0053
EXHIBIT 5 ***
Sprint Spectrum / Metro One Page 45 of 61
CONTRACT NUMBER: 96-0053
ATTACHMENT 1: REPORTING
NUMBER OF CALLS
Incoming calls Answered (not including StarBack calls) X.X
Incoming calls Abandoned (not including StarBack calls) X.X
Total Incoming Calls (not including StarBack calls) X.X
Calls Answered (including StarBack calls) X.X
Calls Abandoned (including StarBack calls) X.X
Total Calls Accepted (including StarBack calls) X.X
Star-Back Calls X.X
Outgoing Calls Dialed (including StarBack calls) X.X
Call Completion rate as % of total X.X%
ABANDONMENT
Avg. Abandoned Time (including StarBack calls)
Calls Abandoned < = 6 sec X.X%
Calls Abandoned > 6 sec X.X%
Calls Abandoned 24 sec X.X%
Calls Abandoned > = 42 sec X.X%
Abandoned calls are calls held in queue and disconnected by the caller
before an operator has answered.
SPEED OF ANSWER
Average Speed of Answer XX.X
Calls Connected form Queue (calls from Queue answered by operator) XX.X%
Average Queue time (average time held in queue before being
answered by an operator) XX.X%
Calls Answered (including StarBack) < = 20 seconds XX.X%
Calls Answered (including StarBack) < = 24 seconds XX.X%
Calls Answered (including StarBack) < = 40 seconds XX.X%
Calls Answered (including StarBack) < = 42 seconds XX.X%
Calls Answered (including StarBack) < 42 seconds XX.X%
OPERATOR CALL PROCESSING TIME
Average Call Processing Time (DCP)
DCPs < =30 sec XX.X%
*** DCPs < =45 sec XX.X%
DCPs < =50 sec XX.X%
DCPs < =55 sec XX.X%
DCPs < =60 sec XX.X%
DCPs < =70 sec XX.X%
DCPs < =80 sec XX.X%
DCPs < =90 sec XX.X%
DCPs > 90 sec XX.X%
Maximum Call Processing time (DCP) XX.X%
----------------------------------------------------------------------------
Metro One shall provide such EDA call count volume records by site location, in
a summarized total for all sites, and in summarized total for certain sites as
requested by Sprint Spectrum. Additional Reports may be defined with prior
mutual written agreement of both parties.
Sprint Spectrum / Metro One Page 51 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 6 INVOICE.
INVOICE,
[LOGO]
Sprint Spectrum Account No. 2001
EDA Sprint Spectrum
000 Xxxx Xxxxxx
Xxxxxxxx, U.S.A.
INVOICE SUMMARY
ENHANCED DIRECTORY ASSISTANCE SPRINT SPECTRUM
APRIL 1, 1996
SITE LOCATION: SPOKANE, WA
Previous Balance $238,076.40
Payments (238,076.40)
Interest on late payments 0.00
Current Charges 0.00
TOTAL DUE $0.00
A charge of 1.5% per month will be assessed on accounts past 50 days.
Federal ID 00-0000000
Page 1 of 2
Sprint Spectrum / Metro One Page 52 of 61
CONTRACT NUMBER: 96-0053
ENHANCED DIRECTORY ASSISTANCE CUSTOMER
SITE LOCATION: SPOKANE, WA
DETAIL OF CURRENT MONTH'S CHARGES
CALL CALL NET CALL NET
DAY DATE VOLUME CREDITS VOLUME CHARGE
-------------------- ------------------------------------------------------
Sat 01-Mar 0 0 0 0.00
Sun 02-Mar 0 0 0 0.00
Mon 03-Mar 0 0 0 0.00
Tue 04-Mar 0 0 0 0.00
Wed 05-Mar 0 0 0 0.00
Thu 06-Mar 0 0 0 0.00
Fri 07-Mar 0 0 0 0.00
Sat 08-Mar 0 0 0 0.00
Sun 09-Mar 0 0 0 0.00
Mon 10-Mar 0 0 0 0.00
Tue 11-Mar 0 0 0 0.00
Wed 12-Mar 0 0 0 0.00
Thu 13-Mar 0 0 0 0.00
Fri 14-Mar 0 0 0 0.00
Sat 15-Mar 0 0 0 0.00
Sun 16-Mar 0 0 0 0.00
Mon 17-Mar 0 0 0 0.00
Tue 18-Mar 0 0 0 0.00
Wed 19-Mar 0 0 0 0.00
Thu 20-Mar 0 0 0 0.00
Fri 21-Mar 0 0 0 0.00
Sat 22-Mar 0 0 0 0.00
Sun 23-Mar 0 0 0 0.00
Mon 24-Mar 0 0 0 0.00
Tue 25-Mar 0 0 0 0.00
Wed 26-Mar 0 0 0 0.00
Thu 27-Mar 0 0 0 0.00
Fri 28-Mar 0 0 0 0.00
Sat 29-Mar 0 0 0 0.00
Sun 30-Mar 0 0 0 0.00
Mon 31-Mar 0 0 0 0.00
TOTAL CURRENT
MONTHLY 0 0 0 0.00
CHARGES
Page 2 of 2
Sprint Spectrum / Metro One Page 53 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 7 FAILURE NOTICE / DISASTER RECOVERY.
Metro One and Sprint Spectrum agree to have the Failure Notice and Disaster
Recovery Plan completed and incorporated into this Agreement by Launch.
Sprint Spectrum / Metro One Page 54 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 8 EDA PRODUCT FEATURES.
Service Set:
- Local search types and services:
Name
Number
Key Word
Address
Category
Movie Listings
Major local current events
Directions based on local operator knowledge
Residential, business, and government listings
Compound String Search
Call Completion
StarBack
Branding (pre & post)
Number to Name Reverse Search
- National search types and services:
Name
Number
Key Word
Address
Residential, business, and government listings
Compound String Search
Call Completion
StarBack
Branding (pre & post)
Number to Name Reverse Search
DATA SOURCE PRIORITY. Metro One will use its internal database(s) as a
first source to fulfill Caller EDA requests for listings within the Call
Origination Area. By September 1997 Metro One will query its internal
database(s) for nationwide queries as a first source in fulfilling Caller
EDA requests within the Call Termination Area.
Sprint Spectrum / Metro One Page 55 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 9 RECORD FORMAT.
The record format must conform to the Securicor Common Format Technical Summary,
Publication Number: 00-0000-00, Release 1, June 1996.
Sprint Spectrum / Metro One Page 56 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 10 IMPLEMENTATION PLAN/DELIVERABLES.
Ml -Establish Connectivity
M2 -Receive appropriate NPANXX for LCA's for that market
M3 -Complete Product Test
M4 -Complete Operational Readiness Test
M5 -Hire Call Center Staff if necessary
M6 -Train Call Center Staff
M7 -Signoff by Sprint PCS and Metro One for Call Center Readiness
Dates for all Milestones will be established based on the launch date
determined by Sprint PCS
Sprint Spectrum / Metro One Page 57 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 11
WORK REQUEST FORM # _________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PURUSANT TO METRO ONE/SPRINT SPECTRUM EDA AGREEMENT NO. 96-0053
MUST BE COMPLETED OR REQUEST IS NULL AND VOID
/ / EDA Services and other benefits under Section 33.
/ / Unrelated Spring Spectrum Suggested Development - Section 33.a.
/ / Related Spring Spectrum suggested Development - Section 33.b.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PREPARED BY:
--------------------------------------------------------
NAME/TITLE/COMPANY
STATEMENT OF WORK - REFERENCE ATTACHMENT IF NECESSARY
DESCRIPTION OF WORK TO BE PERFORMED:
DESCRIPTION OF RESOURCES TO BE UTILIZED:
RATE PLAN FOR RESOURCES (SKILL LEVEL, QUANTITY, DAYS):
DESCRIPTION OF DELIVERABLE(S):
DELIVERABLE(S) DUE DATE(S):
TEST PLAN:
COST ESTIMATE: LABOR: $ TRAVEL: $ OTHER: $ TOTAL: S
(PROVIDE DETAILS IN ATTACHMENT, I.E. HOURS, TRIP COSTS/LOCATIONS, OTHER COSTS)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AUTHORIZATION
METRO ONE: SPRINT SPECTRUM:
NAME: TITLE: PRESIDENT NAME: TITLE:
SIGNATURE: SIGNATURE:
DATE: DATE:
DATE WORK IS AUTHORIZED TO BEGIN: _________________________
ALL INFORMATION ABOVE MUST BE COMPLETE PRIOR TO AUTHORIZATION. WORK PERFORMED
PRIOR TO AUTHORIZATION WILL BE AT METRO ONE'S EXPENSE. IF THE COST OF THE
WORK REQUEST IS EXCEEDED BY 10%, A REVISED WORK REQUEST MUST BE SUBMITTED FOR
APPROVAL.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
INVOICE INSTRUCTIONS
SUBMIT INVOICE WITH VALID DOCUMENTATION TO:
NAME:
ADDRESS:
PHONE: FAX:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ACCEPTANCE OF DELIVERABLES
ACCEPTED BY:
DATE:
EXCEPTION:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CONFIDENTIALITY AND OTHER PROVISIONS OF THIS AGREEMENT. Any Sprint Spectrum
Affiliate entering into this executed Work Request has read and understands
and will be bound, and Metro One will also be bound, by all provisions of
this Specific Agreement 96-0053 as applicable to the Work Request.
Sprint Spectrum / Metro One Page 58 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 12 APPROVED SUBCONTRACTORS.
XNT Systems, Inc.
Tactix Reengineering, Inc.
Sprint Spectrum / Metro One Page 59 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 13 ***
Sprint Spectrum / Metro One Page 60 of 61
CONTRACT NUMBER: 96-0053
EXHIBIT 14 ***
Sprint Spectrum / Metro One Page 61 of 61
